Long battle likely in Microsoft’s newest patent infringement suit

Another lawsuit has been added to the increasingly complex patent lawsuit merry-go-round in the smartphone world. This time, Microsoft has sued Barnes & Noble, claiming that its Nook and Nook Color tablets infringe on Microsoft's patents. Manufacturers Foxconn and Inventec were also sued for the same reason. The lawsuits list five user interface patents that Microsoft claims are being infringed by the Android operating system that Barnes & Noble has used on its tablets.

Though some companies, including HTC and Amazon, have signed patent license agreements with Microsoft, the company says that after a year of negotiation, all three of the companies named in the lawsuit were unwilling to agree to a license. This gave Microsoft no alternative but to sue, it says. Keen to underscore that it was left with no choice, Microsoft also stressed that this was just the seventh proactive patent lawsuit that it had initiated in its 36-year history. The company might also be pressured to sue by its licensees; Amazon competes directly with Barnes & Noble, and Amazon pays Microsoft to license patents for its Kindle, so it is unlikely to be happy seeing Barnes & Noble use the same intellectual property for free.

This latest round of lawsuits brings the total number of Android-related patent suits up to 37 since the start of 2010, and these most recent suits are unlikely to be the last. Microsoft insists that licensing is the solution to Android's patenting issues, but so far appears to have had relatively few companies actually take up its offer. The patents have done little to diminish the appeal of the platform to both manufacturers and users alike, a situation that's likely to persist at least until the court system starts handing down some decisions.

The decision to sue the manufacturers—Foxconn and Inventec—also represents a broadening of the Android patent strategy. The manufacturers thus far have largely avoided lawsuits, with patent-holding companies tending to sue the companies responsible for the design and commissioning of the devices rather than the manufacturers themselves.

Success for Microsoft opens the door to injunctions against the import of anything manufactured by those companies that also infringes on the patents and isn't otherwise licensed. This would have consequences for more than just Barnes & Noble; Foxconn builds Android devices for Samsung, Dell, Sony-Ericsson, and Asus, among others. Acting against the manufacturers in this way means that Microsoft could damage the Android efforts of a whole host of competitors.

The five patents (5,889,522, 5,778,372, 6,339,780 (also named in Microsoft's countersuit against Motorola), 6,891,551, and 6,957,233) are unlikely to persuade anyone of the legitimacy of software patenting. While a cursory reading of the patents does suggest that Android is infringing, if these cases actually make it into a courtroom, then the inventiveness and non-obviousness of the patents will no doubt be challenged. But as Microsoft itself has found in the past, the standards to have a patent overturned are high: successful challenges may not be easy to come by. Microsoft is currently fighting to make it easier to challenge patents—a move supported by other software companies but opposed by many inventors of physical goods.

Barnes & Noble might also feel that it has nothing to lose. The company is unlikely to have any relevant patents of its own, and so has no real ability to enter into a cross-licensing agreement with Microsoft; if it licenses the company's intellectual property, the cash will be flowing strictly one way. Only by prevailing in court does the company have any hope of avoiding such an outcome.

65 Reader Comments

We could solve both court cases by abolishing software patents entirely. The ones Microsoft is using are utter jokes, and prove that the USPTO has jumped the shark in terms of value. I'd hate to even think of trying to enter the mobile space as a small company, Microsoft and Apple would sue the living daylights out of you the moment you started selling devices.

Hopefully Microsoft will win the i4i case and weaken software patents, then lose their own cases completely.

This is Microsoft showing MFGRs why Android isn't free, and Win7 phone is a better choice because MFGRs will never have to deal with patent suits related to the OS. Not saying they are good patents or anything, but that is really the reason behind it. It is somewhat surprising given the amount of patents they do own, that this is only the 7th proactive patent suit for the company.

Acting against the manufacturers in this way means that Microsoft could damage the Android efforts of a whole host of competitors.

That simply had to have been a primary consideration for Microsoft, as they framed this. That's a very smart move, all things considered. Not that I like it, or even agree with having software patents at all, but it's smart.

This is Microsoft showing MFGRs why Android isn't free, and Win7 phone is a better choice because MFGRs will never have to deal with patent suits related to the OS. Not saying they are good patents or anything, but that is really the reason behind it. It is somewhat surprising given the amount of patents they do own, that this is only the 7th proactive patent suit for the company.

I would tend to agree, they are merely making a point. That being its pretty much impossible that Android is completely unencumbered, and license with us now or you will not be protected. Its hardly about the patents, but the principle. Android has essentially thus far had a free ride, without having to give credit where it is due for the many OS's that preceded it.

In the end I've always felt some of this problem falls on Google. They should have either made some kind of licensing deal themselves, or had some kind of arrangement for 'Premium' Android manufacturers in which they can do some kind of cross licensing deal with Google for protection.

I'm an Android user and I love my device, but it just seems as though Google only has a laissez fair stance when it comes to legal purposes, while they still completely control the OS and the direction it will go in.

While I'm still on the fence regarding whether or not software patents should exist, I think we need to be fair here in regards to what is going on.

Until we see some serious legal decisions regarding the legitimacy of these patents, they do still stand, and as such Microsoft does need to protect its inventions. To be fair, Microsoft did offer every one of these companies the ability to enter into a licensing agreement, which would have avoided a lawsuit. If they want to challenge the Microsoft legal-behemoth to fight the software patent battle, then fine, but they did have this coming.

As I said, whether or not software patents should exist, or in the future, enforced, is still a hot button issue. But until there is legal precedent to the contrary, it is in the best interest of these companies to deal with third-parties who violate them.

I don't understand why they have not sued Apple. Those patents are just as applicable to the iPhone as they are to Android.

Generally speaking, MS and Apple have heavy cross-licensing of patents already in place, and these all date back to times when the two companies had rather generous agreements. Except maybe for the two 2005 patents, I'd be very surprised if Apple hasn't already licensed all these.

Also, of course, you only kick the hornet's nest when the hornet's stingers can't reach your skin. I think Microsoft is likely unwilling to attack the cross-licensing with Apple as they are using a host of Apple's patents on Win 7 as well.

I don't understand why they have not sued Apple. Those patents are just as applicable to the iPhone as they are to Android.

Because Apple would sue them right back, and neither would win.

Apple, unlike Samsung, Dell, HTC, etc., has actually created new IP, which they can use both defensively and offensively.

These guys have nothing to protect them. MS's argument is that this is why WP7 is so much better for them, because MS will indemnify them against any patent losses. Google has not been willing to do so.

This is Microsoft showing MFGRs why Android isn't free, and Win7 phone is a better choice because MFGRs will never have to deal with patent suits related to the OS. Not saying they are good patents or anything, but that is really the reason behind it. It is somewhat surprising given the amount of patents they do own, that this is only the 7th proactive patent suit for the company.

Without a doubt.

Taken a bit further, this is MS slapping us all in the face and saying "See what you made us do?"

I would like to see a study detailing all of the major computing platforms or tech innovations introduced in the last 15 years, and their associated lawsuits, specifically focused on how many have not been accused of violating a software patent.

And so Microsoft spreads FUD over the entire Android platform. Is anyone really surprised?

The only way out is for Google to step up and make their platform safe for manufacturers by indemnifying them against this sort of thing. Failure to do that leaves Android open to any and all patent abuse. It doesn't even matter if it's unfair.

It's a good strategic move by Microsoft, even if some of us do cry "poor form!"

This is Microsoft showing MFGRs why Android isn't free, and Win7 phone is a better choice because MFGRs will never have to deal with patent suits related to the OS. Not saying they are good patents or anything, but that is really the reason behind it. It is somewhat surprising given the amount of patents they do own, that this is only the 7th proactive patent suit for the company.

Without a doubt.

Taken a bit further, this is MS slapping us all in the face and saying "See what you made us do?"

The American people (represented by Congress, Judges, USPTO, etc) have continued to support your flawed patent system. I completely agree that Americans have forced MS to play the same game as everyone else. Don't hate the player, hate the game.

And so Microsoft spreads FUD over the entire Android platform. Is anyone really surprised?

The only way out is for Google to step up and make their platform safe for manufacturers by indemnifying them against this sort of thing. Failure to do that leaves Android open to any and all patent abuse. It doesn't even matter if it's unfair.

It's a good strategic move by Microsoft, even if some of us do cry "poor form!"

It's not FUD if there's a real axe to grind. Google is a buiness too and they made their millions by leveraging other people's technology to sell advertising space to their clients. If they trod on people to do this, they as much as anyone else should be pulled up on it.

It's not FUD if there's a real axe to grind. Google is a buiness too and they made their millions by leveraging other people's technology to sell advertising space to their clients. If they trod on people to do this, they as much as anyone else should be pulled up on it.

I'd say it's still FUD even if there is a real axe to grind. Microsoft have made a number of comments about Android and how it infringes on their patents. They made a number of comments about Linux too, although never followed those through with a direct lawsuit.

The effect of those comments is to ensure that manufacturers will see Android as a risk - you could be sued by Microsoft at any point, so is Android worth it?

The fact that they've now followed through and sued a bunch of manufacturers realises that risk. This could very well have a chilling effect on the Android platform, unless Google steps into the role they should have taken all along - "We wrote the OS, we'll indemnify you against patent suits from our OS."

I guess the element of doubt is removed, so Microsoft are spreading FU around.

And so Microsoft spreads FUD over the entire Android platform. Is anyone really surprised?

The only way out is for Google to step up and make their platform safe for manufacturers by indemnifying them against this sort of thing. Failure to do that leaves Android open to any and all patent abuse. It doesn't even matter if it's unfair.

It's a good strategic move by Microsoft, even if some of us do cry "poor form!"

It's not FUD if there's a real axe to grind. Google is a buiness too and they made their millions by leveraging other people's technology to sell advertising space to their clients. If they trod on people to do this, they as much as anyone else should be pulled up on it.

except there's no real axe to be found *in this suit*. It's ridiculous to claim that Microsoft is making some kind of larger point beyond a move to get licensing money (or slow down a competitor), because if they really were trying to make one, they would use better patents (moreover, they would sue google).

The *really* aggravating thing is that Microsoft has supported patent reform in the past, but suits like this just accelerate the need to patent every stupid thing you can think of so someone else doesn't do it and sue you, or as leverage in case they sue you for something else. You can support sane patents *and* protect your IP: just pick something real to sue over!

To me, there's no difference here from the Paul Allen suit, except that in this case Microsoft makes a competing device that also "displays a temporary, animated graphic element over the content viewing area when the browser is loading content." good one guys.

I don't understand why they have not sued Apple. Those patents are just as applicable to the iPhone as they are to Android.

MS is using this patent fight to frame how they fight in the market.

In the current market, iOS isn't WP7's biggest competitor; manufacturers like your HTCs, Samsungs and Motorolas can't make phones based on iOS. Nor can they make WebOS devices.

There are only 2 major phone OS platforms that can be used by those manufacturers: Android and WP7. Because Android has massive amount of momentum as well as being free to use, WP7 is at a significant adoption disadvantage. What better way to bridge that gap then to make Android manufacturers pay MS for the patents that Android infringes (rightly or wrongly though that fact may be).

It's fiendishly clever. Not very nice, but no one gets into business to be nice. They are taking advantage of the legal recourses they have available to them.

The interesting question for me is, will this work? HTC entered into this cross licensing dealie with MS, and they are still perfectly content to make the majority of devices they sell based on Android. I can't imagine why MS thinks this is going to slow Android's adoption. This would have been a great move to pull back in '08 when Android had no momentum.

While I'm still on the fence regarding whether or not software patents should exist, I think we need to be fair here in regards to what is going on.

Until we see some serious legal decisions regarding the legitimacy of these patents, they do still stand, and as such Microsoft does need to protect its inventions. To be fair, Microsoft did offer every one of these companies the ability to enter into a licensing agreement, which would have avoided a lawsuit. If they want to challenge the Microsoft legal-behemoth to fight the software patent battle, then fine, but they did have this coming.

As I said, whether or not software patents should exist, or in the future, enforced, is still a hot button issue. But until there is legal precedent to the contrary, it is in the best interest of these companies to deal with third-parties who violate them.

Thats like saying its the bar owners fault his bar burnt down after refusing to pay the extortion money. This just proves that Microsoft is worthless. At the same time they are suing B&N, they are arguing against this very type of lawsuit in front of the US Supreme Court. Talk about hypocrisy....

While I'm still on the fence regarding whether or not software patents should exist, I think we need to be fair here in regards to what is going on.

Until we see some serious legal decisions regarding the legitimacy of these patents, they do still stand, and as such Microsoft does need to protect its inventions. To be fair, Microsoft did offer every one of these companies the ability to enter into a licensing agreement, which would have avoided a lawsuit. If they want to challenge the Microsoft legal-behemoth to fight the software patent battle, then fine, but they did have this coming.

As I said, whether or not software patents should exist, or in the future, enforced, is still a hot button issue. But until there is legal precedent to the contrary, it is in the best interest of these companies to deal with third-parties who violate them.

Thats like saying its the bar owners fault his bar burnt down after refusing to pay the extortion money. This just proves that Microsoft is worthless. At the same time they are suing B&N, they are arguing against this very type of lawsuit in front of the US Supreme Court. Talk about hypocrisy....

Sure, it's hypocritical, but that's the vicious circle: a company violates another's patents, so they sue.

Your example makes no sense also. There is quite a large difference between violating a patent and committing a felony (usually): one is civil, and the other is criminal. Microsoft isn't burning down the company headquarters because they didn't pay licensing fees, they're suing them because they used their patents without paying.

But even if you entirely oppose software patents, it's still a good idea to collect as many as you can for use as bargaining chips in the inevitable lawsuits.

But how can you use a patent as a bargaining chip unless it is perceived to have some legal standing? And if these patents have some legal standing, then why do you say that their "ridiculousness...may make for a good opportunity" for Google to mount a legal defense?

The "ridiculousness" of the patents from a common-sense perspective is irrelevant when deciding whether to mount a defense. What matters is their likely standing in a court of law.

Unlike others who simply troll their acquired patents simply to make a quick buck (or a business equivalent quick buck anyway), Microsoft is doing it to level the playing field and put WP7 on the same level as Android. Not to mention that their method to do that is much more respectable than most others.

Even though Microsoft is essentially doing this to benefit itself, the ramifications of this can only benefit the end-user. If they win, WP7 will be on a more level playing field with Android, leading to more competition between the two. If they lose, Android will most likely gain the foundation it hasnt had up til now since Microsoft's infringed patents cannot be filed against Android anymore and no longer pose a threat, leading to more development for the OS because software developers feel safer.

But even if you entirely oppose software patents, it's still a good idea to collect as many as you can for use as bargaining chips in the inevitable lawsuits.

But how can you use a patent as a bargaining chip unless it is perceived to have some legal standing? And if these patents have some legal standing, then why do you say that their "ridiculousness...may make for a good opportunity" for Google to mount a legal defense?

The "ridiculousness" of the patents from a common-sense perspective is irrelevant when deciding whether to mount a defense. What matters is their likely standing in a court of law.

Furthermore, even though Microsoft is fighting software patents, they still feel the need to sue over their patents. That implies that they don't think that the situation is going to change any time soon...a bummer for Software Patent opponents.

Unlike others who simply troll their acquired patents simply to make a quick buck (or a business equivalent quick buck anyway), Microsoft is doing it to level the playing field and put WP7 on the same level as Android. Not to mention that their method to do that is much more respectable than most others.

Even though Microsoft is essentially doing this to benefit itself, the ramifications of this can only benefit the end-user. If they win, WP7 will be on a more level playing field with Android, leading to more competition between the two. If they lose, Android will most likely gain the foundation it hasnt had up til now since Microsoft's infringed patents cannot be filed against Android anymore and no longer pose a threat, leading to more development for the OS because software developers feel safer.

Ive got my popcorn, lets see how this plays out.

Without defining what you mean by "a level playing field," I don't understand the point you're trying to make here. There are many ways that you could hobble one competitor to help another get a foot in the door, but, on its own, that is a terrible basis for any market action.

pyster wrote:

This is the first posting on Ar's where the user comments mainly consist of dribble related to crack smoking. With few exceptions most of you should put the pipe down.

I have no clue how you thought that comment would improve matters. Make a point or move on.

Acting against the manufacturers in this way means that Microsoft could damage the Android efforts of a whole host of competitors.

That simply had to have been a primary consideration for Microsoft, as they framed this. That's a very smart move, all things considered. Not that I like it, or even agree with having software patents at all, but it's smart.

Oh, hardly. Setting up a China vs. Redmond dynamic could very well be self-defeating for Microsoft. Someone has to actually manufacture the hardware Microsoft's software runs on. HTC and Amazon paid the piper, but they haven't gained any incentive to help make WP7 a success.

One assumes Microsoft's long-term plans for the smartphone market include more than getting a pittance in patent licensing fees from manufacturers of Android phones. (insert Nokia joke here)

Unlike others who simply troll their acquired patents simply to make a quick buck (or a business equivalent quick buck anyway), Microsoft is doing it to level the playing field and put WP7 on the same level as Android. Not to mention that their method to do that is much more respectable than most others.

Even though Microsoft is essentially doing this to benefit itself, the ramifications of this can only benefit the end-user. If they win, WP7 will be on a more level playing field with Android, leading to more competition between the two. If they lose, Android will most likely gain the foundation it hasnt had up til now since Microsoft's infringed patents cannot be filed against Android anymore and no longer pose a threat, leading to more development for the OS because software developers feel safer.

Ive got my popcorn, lets see how this plays out.

Without defining what you mean by "a level playing field," I don't understand the point you're trying to make here. There are many ways that you could hobble one competitor to help another get a foot in the door, but, on its own, that is a terrible basis for any market action.

pyster wrote:

This is the first posting on Ar's where the user comments mainly consist of dribble related to crack smoking. With few exceptions most of you should put the pipe down.

I have no clue how you thought that comment would improve matters. Make a point or move on.

Fair enough. The point I tried to make is that competition must exist, and any attempt to encourage such should be looked at as beneficial, at least given the fundamental limitations of our current system.

In markets like mobile OS, there is generally very little choice. Now Microsoft is trying to enter (or re-enter to be technically correct) this market, but their OS is hampered, not necessarily because it lacks the quality/features of those products it intends to compete with (which is actually true to an extent), but simply because it is a late-comer. Granted, this opinion is very arguable. This is just my stand on the subject.

What is mostly arguable is whether encouraging competition artificially through government action or through situations such as this one is justified. I would argue my point further, but it would most likely be a perpetual argument since neither side is going to budge.

What will they patent next. The method of inserting a nail into wood by using of a tool called a hammer?

Nice.

Personally I think giving protection money to M$ or Apple only encourages their bullying. I don't like Amazon or Barnes & Nobel for selling DRM infected products, but I really have to side with B&N here. I hope they can afford the legal battle.